Published by Atlantic Institute for Market Studies

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Supreme Court justices are political appointments, and that’s a good thing

The federal government wants to remove partisanship from Supreme Court appointments. It will refer task of choosing candidates to a panel of experts who can evaluate potential new justices.

With respect, I think that the government is making a mistake in reasoning its process this way. Arms-length selection procedures are justified for non-political appointments, such as determining who will audit the national finances, or do renovations to the prime minister’s residence, or do payroll for bureaucrats, or build and repair infrastructure.

But it is a category mistake to view the supervisory institutions of our system – i.e. the Senate and the Supreme Court – as above politics. These bodies do not merely hold the government and Parliament to account on procedural grounds; they also do so on normative, or value, grounds – and once you bring values in, you have to consider popular mandate.

Supreme Court justices, especially, are not merely tasked with ensuring that Parliament has passed a law with the correct number or readings, or that the necessary number of votes was cast, or that the bill received royal assent. They also have to evaluate its content, ensuring that the law conforms with the values enshrined in the constitution.

How someone evaluates constitutionality depends in part on one’s view of the world. On an issue relating to free speech, for instance, a more conservative justice would probably lean toward a more generous interpretation of that liberty. More progressive-minded justices would probably lean toward circumscribing expression rights in the interest of shielding minorities from hate speech.

The distinction doesn’t stop here: early socialist critics of the Charter – such as former BC legislator Andrew Petter – objected that the document did not guarantee “positive rights” to government welfare and healthcare, and recognized a liberty of contract that could hamper organized labour or intimate the existence of property rights. Given the stretching of the constitution’s meaning and scope that results from Section 1, an NDP-appointed justice could have a very different hermeneutic from his or her predecessors.

In a democracy, it behooves the person chosen as prime minister to appoint justices in accordance with the people’s choice. By voting for one party or another, one is – in addition to supporting the party that one wants to form government – endorsing the discretion of that party’s leader in choosing a Supreme Court justice.

So a prime minister really owes it to the voters who put his party in power to appoint someone who aligns with their worldview. Pushing the task off to a panel of experts doesn’t get around the importance of getting the values of our justices correct.